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[2020] ZALMPPHC 26
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Theron and Others v Minister of Police and Others (1082/2016) [2020] ZALMPPHC 26 (20 May 2020)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
(LIMPOPO
DIVISION, POLOKWANE)
(1)
REPORTABLE:
YES
/NO
(2)
OF
INTEREST TO OTHER JKUDGES: YES/
NO
(3)
REVISED
CASE
NO: 1082/2016
20/5/2020
In
the matter between:
WILLEM
ADRIAAN THERON
FIRST PLAINTIFF
ANNA
MARIA MARGARETHA THERON
SECOND PLAINTIFF
CATHARINA
CORNELIA STOCKHUSEN NO
THIRD PLAINTIFF
CATHARINA
CORNELIA STOCKHUSEN NO
FOURTH PLAINTIFF
and
MINISTER
OF POLICE
FIRST
DEFENDANT
NATIONAL
COMMISSIONER OF POLICE
SECOND DEFENDANT
PROVINCIAL
COMMISSIONER OF POLICE
THIRD DEFENDANT
JUDGMENT
MAKGOBA
JP
[1]
The Plaintiffs in this
matter instituted action against the Defendants claiming damages
arising out of the death of one JJ Theron
on the 27 April 2015 in
Polokwane.
The First and Second
Plaintiffs are the parents of JJ Theron ("the deceased").
The Third and Fourth Plaintiffs are one
and the same person, namely,
the divorcee wife of the deceased. She instituted the claim for loss
of support in her capacity as
mother and natural guardian of the
deceased's two minor children, Migael Andriaan Theron born 12 July
2007, and Carissa Theron
born on 8 July 2010.
[2]
The deceased was the father
of the two minor children in question and that as at the date of the
death of the deceased, there was
an existing maintenance Court order
in favour of the mother of the minor children for their maintenance.
The mother of the minor
children and the deceased divorced in August
2012.
[3]
A separation of issues has
been ordered in terms Rule 33(4) of the Uniform Rules of Court. The
determination of quantum of damages
has been postponed
sine
die,
and this matter
proceeded on trial on the aspect of liability or merits only.
FACTUAL
BACKGROUND
Plaintiffs'
Evidence
[4]
The evidence of the
Plaintiffs was led through five witnesses, namely the Second
Plaintiff, a member of the neighbourhood watch
(Mr Hartman) and three
medical practitioners.
4.1.
Anna Maria Theron is the
mother of the deceased. After his divorce the deceased stayed with
his mother and father at their house
at 18 Meteor Street, Bendor,
Polokwane. During the weekend preceding the 27
th
April 2015 the deceased's
two minor children visited their grandparents house where their
father lived.
4.2.
Mrs Theron testified that
in the early hours of the morning of the 27
th
April 2015 at 03h30 the deceased's daughter (Carissa) requested to go
and sleep in her father's room and this was granted. Between
06h00
and 8h00 she observed that the deceased was sitting in the TV room
with his daughter and at 08h30 it appeared that the deceased
was back
in his bedroom with his daughter. It is during this time that the
parents of the deceased were concerned as they made
an observation
that there were acts of violence by their son as he was breaking
glass objects behind closed doors in the presence
of his daughter.
Carissa at that time reported to her grandparents that she was hiding
under the mattress in the room. The grandparents
at that time,
concerned about the well-being of the granddaughter, attempted to
break through the door into the room when the grandfather
was bitten
by the deceased on both of the arms. That is when the deceased's
father decided to call the Police and the neighbourhood
watch for
assistance.
4.3.
According to Mrs Theron,
the deceased was known to have been using drugs. During that morning
she realized that the deceased's bedroom
was mixed up and that the
deceased started behaving in a strange manner. The deceased uttered
strange words to the following effect:
"Mama, help me! I cannot
take it anymore! There is a snake in the room. I want to climb the
highest mountain!"
4.4.
A tenant of the Therons, Mr
Andries Jordaan was asked to call the Police and two members of SAPS,
a male and female arrived at Theron's
house.
The
two policemen could not succeed in opening the door to the deceased's
bedroom. They called for a backup and thereafter six more
policemen
came to the scene. Two members of the neighboured watch, namely Mr
Casper Van der Spuy and Mr Peet Hartman also came.
The Police
together with the two members of the neighbourhood watch succeeded in
breaking the door and entered the deceased's bedroom.
4.5.
At some stage Mr Van der
Spuy managed to take the child from the deceased but the deceased
took the child back. The deceased was
sprayed with a pepper spray and
was then subdued. The Police
managed to take the child away
from the deceased and handed the child to her. At that stage she saw
the deceased lying on
his side on the floor. After taking the child
to her bedroom she went back to the deceased's bedroom and saw the
deceased lying
on his stomach and handcuffed. Mr Van der Spuy brought
a rope which was used to tie the deceased's legs. At that stage it
appeared
to her that the deceased was unconscious. A belt was also
used to fasten the deceased's legs. She observed that the deceased
was
blue on his right side of the face and had goose bumps on both
legs. The deceased was lying on his stomach, with his legs fastened
and his hands still handcuffed. She later realised that the deceased
had passed on.
4.6.
Mr Peet Hartman, a member
of the neighbourhood watch also testified.
He
arrived at scene and was later followed by Mr Van Der Spuy. The
Police arrived a few minutes thereafter. He learnt from Mrs Theron
that her son had locked himself together with his daughter in the
bedroom. He realized that the bedroom was in a mess and that
the girl
child was below the bed. With the help of the Police they succeeded
in taking the child from the deceased but the deceased
managed to
take the child back. After the deceased was pepper sprayed and
subdued, he succeeded in taking the child away from the
deceased and
handed her to Mrs Theron.
4.7.
Mr Hartman confirmed that
the deceased was tied with a rope and a belt. When asked whether he
saw anybody strangling the deceased,
his answer was no. He further
stated that he himself never strangled the deceased and further that
Mr Van der Spuy also did not
strangle the deceased.
4.8.
The next witness for the
Plaintiffs was Dr
M
M
Matlala. She
is a medical
practitioner with a
further qualification of a Diploma in Pathology. She is the medical
doctor who performed the post-mortem in
respect of the deceased on
the 30
th
April 2015. Her chief post-mortem findings which as a result, made a
conclusion with regard to the cause of death are as follows:
1.
Multiple abrasions and
bruises on the face; abrasions on the body.
2.
Contusions of the facial
and neck muscles.
3.
Fractured hyoid bone.
4.
Signs of asphyxia.
4.9.
Dr
Matlala declared on the basis of findings from the medico-legal post
mortem examination that the manner of death was due
to unnatural
causes. The cause of death statement on the form DHA-1663 was
formulated as Asphyxia due to manual strangulation.
She described the
Asphyxia as being the mechanism
that follows compression of the neck and this compression has brought
about the underlying / primary
cause of death, being manual
strangulation. Dr Matlala did not list any contributory factors that
might have contributed to the
immediate cause of death. The
post-mortem examination report was handed in as "Exhibit A"
and the addendum thereto was
handed in as "Exhibit B".
Dr
T A Mamashela was the next witness to testify. He is a registered
specialist in Forensic Pathology and is also engaged in
the
practice of Forensic Pathology as a consultant. His report was read
into record and handed in as "Exhibit C".
Dr Mamashela
endorsed the findings of Dr Matlala that the cause of death of the
deceased was as a result of Asphyxia due to
neck compression with
manual strangulation. He further stated that the findings made by
Dr Matlala are indicative of force
applied to the neck as a result
of manual strangulation that resulted in Asphyxia.
The
main conclusions and / or opinion arrived at by Dr Mamashela are
the following and are noted verbatim:
"[1]
The history and circumstances surrounding the death of Mr Theron
JJ
from the documents I was
supplied with and perused describes an individual who was during the
moments prior to his death violent
and
as
a
result his safety and that of
the others was
a
concern for his parents.
As
a
result
the parents of Mr Theron
JJ
were compelled to seek
assistance from the law enforcement personnel to deal with the issues
of safety especially
with the issues of safety of the child who was in the same room as Mr
Theron JJ.
[2]
It is clear from the records that the
cause or factors leading to the aggressive and violent behaviour of
Mr Theron JJ could not
be explained or ascertained. However, it
remains
a
matter of speculation with
regard to the possible effects of drugs and this is on the basis of
the history of drug use by Mr Theron
that is contained in the stated
affidavit by his parents.
The
post-mortem examination report by Dr
M
M
Mat/ala
indicated that
a
blood sample was
collected for analysis of alcohol levels and drug screen. The results
of the analysis are not part of the documents
supplied and perused.
Furthermore it is not clear if the tests have been conducted or the
results are available.
The
blood results could assist in making the assessment if Mr Theron JJ
was acting under the influence or the effect of any form
of substance
or not.
[3]
Mr Theron JJ was restrained by law
enforcement officials. The post mortem examination report
indicates that there
was a
significant amount of force applied
to Mr Theron JJ during the restrain. It is further clear that the
method applied during the
process of restrain were fatal in nature
and incompatible with the life rather than calming down
a
violent and aggressive individual.
[4]
The cause of death of Mr Theron
JJ
as determined from the
post mortem examination by Dr
M
M
Matlala can be
linked directly with the application of force during the process of
applying restraint in an attempt to deal with
violence and aggression
by Mr
JJ
Theron."
[5]
It is appropriate even at
this early stage of my judgment to note and comment on the
significance of the reports of both Dr Matlala
and Dr Mamashela with
regard to the cause of death of the deceased. Both doctors agree that
the cause of death was the application
of force on the neck or on the
throat of the deceased which led to Asphyxia, that is loss of
breathing, due to manual strangulation.
This entails that one or more
persons could have handled or grabbed the deceased on the neck or
throat and pressed it so hard that
such force could ultimately have
led to Asphyxia.
It is against
this background that at the closure of the Plaintiffs' case I
dismissed the Defendant's application for absolution
from the
instance and called upon the Defendants to lead their evidence in
rebuttal of the
prima facie
version
of the Plaintiffs.
[6]
It is common cause that
indeed the deceased on the day in question was violent and apparently
under the influence of drugs and thus
needed to be subdued. The
question is what method of subjugation could have been used to subdue
the deceased. On this aspect the
Plaintiffs called an expert witness
in the person of Professor /
Doctor Gian Lippi, a Forensic Psychiatrist at the University of
Pretoria.
[7]
Professor Lippi testified
and described the accepted method and practice utilised in the
management of aggressive persons and how
to restrain and calm down
such persons. The following are such measures to be taken:
7.1.
Attempt
to de-escalate the situation by calmly conversing with the patient in
a non-aggressive tone or manner with the aim of calming
him or her
down.
7.2.
If
all attempts by an individual to calm the patient down using dialogue
have failed, it is advised that a number of security and
/ or
preferably male medical staff be gathered to stand behind the Health
Care Practitioners attempting to de-escalate the situation
in a "show
of force", but not to get involved in dialogue.
7.3.
If
all attempts to calm the patient down using dialogue have failed, and
it is the opinion of the Health Care Practitioner that
the patient
requires physical restraint to ensure his / her safety and that of
others, the following procedure is advised:
(1)
Six, preferably male staff
members should gather to discuss how they are going to restrain the
patient - every individual should
know their role before any
restraint is attempted;
(2)
One staff member each is
allocated to hold the head, left arm, right arm, left leg and right
leg of the patient;
(3)
The patient should then, as
gently as possible, be brought to the floor face down;
(4)
Each limp should be held
against the floor, the head should be turned to
the
side and held against the floor as gently as possible;
(5)
No force should be applied
to the patient's back and no hands should be applied around the
patient's neck;
(6)
The patient is held down
until he / she no longer struggles or until he /
she
verbally agrees to cease his/ her aggression.
(7)
If deemed necessary, the
patient can then be temporarily placed in a seclusion room for his /
her safety and that of others.
(8)
If the patient is secluded
it is the responsibility of the treating staff to make sure that he
or she is regularly observed for
his own safety;
(9)
The use of physical
restraints like tying a patient up or down is the last resort.
[8]
Professor/ Doctor Lippi
gave an opinion that the South African Police Service may have their
own policy of how to restrain aggressive
persons. However, from a
medical point of view, and related to the restraint of the deceased
in the present case, Dr Lippi is of
the opinion that tying the
deceased up using a
rope and belt
is deemed to have been unnecessary if there had been enough people
who could have held his limbs as described above.
Defendants'
Evidence
[9]
Four witnesses testified on
behalf of the Defendants - three police officers present at the scene
of the deceased's death and an
expert witness who testified on the
possible cause of the deceased's death.
9.1.
Captain Daniel Selepe, a
member of the South African Police Service testified that he attended
the scene at 18 Meteor Street, Bender,
Polokwane on the 27 April 2015
after being called by Warrant Officer Nyandeni who needed police
backup. At the scene he found other
police officers, namely Nyandeni,
Machaka, Mogano and Lekota. Also there were two members of the
neighbourhood watch and the deceased's
parents.
According
to Captain Selepe the members of the neighbourhood watch were inside
the house trying to put the deceased under control.
He was later told
by Mr Hartman that the deceased was no longer aggressive or violent.
He then called the Emergency Medical Services
(EMS) personnel who
then came to the scene. One Mr Jacobs of the EMS examined the
deceased and certified him dead.
9.2.
Under
cross-examination Captain Selepe stated that he was not
involved
in any effort to subdue the deceased. However, he stated that he saw
one of the police officers trying to handcuff the
deceased and that
the deceased was violent and resisting.
9.3.
Sergeant James Magano of
SAPS testified that he arrived at the scene on 27 April 2015 and
found the police officers, Nyandeni and
Machaka there. He got a
report from Mr Theron (deceased father) that the deceased was inside
the house holding his grandchild captive
and that the deceased was
aggressive and under the influence of drugs.
He
and other police offcers proceeded to the house and he heard the
child screaming in the house. They decided to go and rescue
the
child. He heard the deceased shouting:
"I
am killing my own child"
He
and Nyandeni managed to get into the room. The deceased held the
child and a mattress was on top of them. He used a blanket to
cover
the deceased and in the process Nyandeni removed the child and gave
the child to the deceased's father who was nearby.
9.4.
The
deceased managed to stand up and ran out of the room. He broke the
window pane and attacked Sgt Mogano. The latter managed to
run out of
the room. The deceased's father had dropped the child at the passage
whereafter the deceased grabbed the child and proceeded
to another
room with the child. The police officers had no option but to follow
the deceased in an effort to rescue the child.
According to Magano
they were 10 men in number, being 7 policemen, 2
neighbourhood
watch members and the deceased's father inside the house.
The policemen entered the room and found the
deceased holding the child between his thighs - the child was in
pain. According to
Mogano all of them (the policemen) took part in a
struggle to free the child. After removing the child the deceased was
handcuffed.
There was a heavy struggle to bring the deceased under
control and eventually to handcuff him.
According to Sgt Mogano he never grabbed the
deceased by his throat during the struggle and he did not notice any
of the policemen
grabbing the deceased by his throat or neck.
9.5.
Under
cross-examination Sgt Mogano stated that 10 SAPS members had entered
the room in order to overpower the deceased and free
the child. He
stated further that the struggle to overpower the deceased and free
the child from the second room ensued for about
10 to 15 minutes. Sgt
Mogano could not dispute the post-mortem report findings that the
deceased was strangled.
9.6.
Warrant Officer Ben
Nyandeni is also one of the Police Officers who took part in the
struggle to subdue the deceased in an effort
to free the child. He
got information that the deceased was violent, breaking house
property and had kept the child captive inside
the house. He was told
that the deceased was under the influence of drugs.
He and Magano managed to free the
child from the deceased on the first occasion and handed the child to
Mr Theron Senior. The deceased
managed to take the child back and
went into the second room with the child. According to Nyandeni, four
of them (police only)
followed the deceased into the second room. The
child was removed from the deceased and handed over to Mr Theron
Senior.
9.7.
Warrant Officer Nyandeni testified further that after the child was
removed from the deceased
he himself asked for a belt to tighten the
deceased. He cannot remember who handcuffed the deceased. According
to him no one held
the deceased by the neck during the struggle to
subdue the deceased.
9.8. Under
cross-examination Nyandeni stated that there were only four policemen
who entered
the second room and got involved in the struggle with the
deceased. The neighbourhood watch members were, according to him,
outside.
Only four policemen took part in an effort to subdue the
deceased. He contradicted the evidence of Sgt Magano that
10
men took part in the struggle to
subdue the deceased in that second room.
He stated further that after the
child was rescued it took them 15 to 20 minutes to try and subdue the
deceased.
9.9.
The
expert witness called by Defendants is Dr S P Jansen Van Vuuren, a
medical practitioner registered as a specialist in Forensic
Pathology.
Dr Jansen Van Vuuren
testified and confirmed that a medico-legal post-mortem examination
was performed by Dr M M Matlala on the
deceased on the 30
th
April 2015. He confirmed and agreed that the cause of death was found
to be "Asphyxia Due To Neck Compression Consistent with
Strangulation". He also confirmed that there was a fracture of
the hyoid bone and also signs of Asphyxia. According to Dr
Jansen Van
Vuuren in his opinion and after perusal of the post mortem report and
with the available information the pathologist
had at the time of the
post mortem examination, he would concur with the conclusion of the
cause of death as found by the pathologist.
He stated further that it
is important to note in the cause of death that the mechanism of
injury which caused the Asphyxia and
neck compression was noted as
"Consistent with" manual strangulation in the report. In
his opinion this indicates a probability
of manual strangulation
which is more likely than not, but does not exclude other
possibilities of neck compression or injury.
9.10.
He
testified further that the general mechanism of injury, relating to
the cause of death, was blunt force trauma to the neck. The
blunt
force injuries to the neck shows a pattern of the following injuries:
(1)
The
fracture of the hyoid bone (and related injuries) was caused by blunt
force trauma to this area. The presence of a fractured
hyoid bone, in
association with an Asphyxia death, is associated with throttling or
manual strangulation.
(2)
A
"discoid abrasion" was noted on the ankle of the left jaw,
anatomically related to underlying blunt force injuries to
the neck
tissues, including the hyoid bone fracture. The pattern of this
injury is suggestive of a mechanism of injury by a fingertip,
and as
such manual compressing of the neck tissues at this area.
9.11.
This
witness was of the view that the possibility that "excessive
force" was used in subduing the deceased is a legal
question.
That it is not possible, using evidence based on medicine, to
determine the specific amount of pressure used or the specific
duration of pressure. Of interest, Dr Jansen Van Vuuren quotes the
opinion by Drs Real and Eisele, writers in the medical field,
where
they said
"
Use of neck holds
(by
police officers)
must be viewed in the same way as firearms; the potential for a fatal
outcome is present each time a neck hold
is applied and each time a
firearm is drawn from its holster".
9.12.
The
joint minutes of Dr Van Vuuren and Dr Mamashela was handed in during
the trial as Exhibit D. There are many points of agreement
between
them, in particular on the following point: "Given the injuries
sustained by Mr J J Theron during the restraining
process and the
eventual cause of death found during
the
medico-legal post-mortem examination, it is apparent that
the method of restraint was fatal"
(Their underlining)
In
conclusion Dr Jansen Van Vuuren opines that:
The
medical evidence shows that fatal force was used in subduing Mr J J
Theron (deceased). However, the amount and duration of force
used to
subdue Mr J J Theron cannot be determined accurately. The
contribution of drug intoxication to the underlying cardio-vascular
vulnerability and the amount of force that was used, should be
considered due to the effects that these drugs have on the
cardio-vascular
system. This will have implications in terms of the
foreseeability of the fatal outcome of the actions by the police.
ISSUES
[10] The
following issues are to be determined in the light of the above
stated factual background:
10.1. Whether the police
officers of the Defendants ("members of SAPS") owed a legal
duty of care to
the deceased and the Plaintiffs under the
circumstances;
10.2. Whether the members of
SAPS acted in breach of such a duty and did so negligently and
10.3. Whether there was a
causal connection between such negligent breach of the duty and the
damage suffered
by the Plaintiffs.
This then leaves the way open to
consider the delictual liability of the Defendants.
DELICTUAL
LIABILITY OF THE DEFENDANTS
[11] It is
the Plaintiffs' case that the Defendants have a statutory legal duty
in terms of
section 205 of the Constitution to assist and protect the
public and that on 27 April 2015 members of the SAPS were called in
their
official capacity to assist the Plaintiffs in handling a
volatile situation at the Plaintiffs' home. In the process the
members
of SAPS, as employees of the Defendants breached their legal
duty, more particularly failed to establish proper control over the
scene or at all. That the inability of members of SAPS as law
enforcement officers to manage the scene of the crime or incident
was
the direct cause of the death of the deceased.
[12]
Furthermore the Plaintiffs
contend that the police officers of the Defendants acted wrongfully
and negligently in that they, as
law enforcement officers caused or
contributed to the death of the deceased, alternatively, wrongfully
and negligently allowed
members of the neighbourhood watch to cause
or contribute to the death of the deceased and in these
circumstances, it is actually
irrelevant who in particular caused the
death of the deceased.
[13]
It
is trite that a delictual claim for damages should have all the
elements of a delict namely: an act
(actus
reus)
that is unlawful
or wrongful, that was performed negligently (fault, in particular
culpa) and that was the cause of the harm incurred
[1]
.
[14]
The
crux of this case is whether the members of SAPS managed the
psychotic episode of the deceased correctly with the least amount
of
force; and whether there were other less invasive options that could
have been followed to restrain the deceased during his
psychotic
episodes taking into consideration the existing circumstances.
The Act (actus
reus)
[15]
The
undisputed medical evidence on record is that the cause of death was
Asphyxia as a result of manual strangulation and that considerable
force was applied and maintained to the neck area of the deceased to
cause the hyoid bone to fracture.
Furthermore
and according to the evidence of Dr Van Vuuren (the Defendant's
expert witness) the mechanism of the injuries to the
deceased
indicated a probability of manual strangulation which is more likely
than not but does not exclude other possibilities
of neck compression
or injury. Dr Van Vuuren confirmed the presence of a fractured hyoid
bone, in association with an Asphyxia
death and that this pattern of
the injury is suggestive of a mechanism of injury by a fingertip, and
as such manual compressing
of the neck tissue at this area.
[16] The above stated medical
evidence constitutes
prima facie
evidence that the deceased was
throttled during the struggle with members of SAPS. The latter had a
lot to explain as to how the
deceased could have sustained such
injuries during their struggle with him for a considerable period of
more than ten minutes as
stated by Sgt Magano and Warrant Officer
Nyandeni. The police officers failed to adduce evidence to rebut the
prima facie
medical
evidence. They denied that any of the police officers held the
deceased by his neck area. I find it improbable that during
a
struggle between the deceased and more than four police officers for
a considerable period of more than ten minutes, none of
them could
not have held the deceased by his neck area. In the circumstances of
this case I am enjoined to draw an inference that
one or more of the
police officers held the deceased by neck area and thus throttled
him. This is the only inference which is sought
to be drawn in the
circumstances
[2]
.
[17]
It does not make any
difference whether the neighbourhood watch members could also have
throttled the deceased as Counsel for the
Defendants argued. The
neighbourhood watch members were in joint operation with the members
of SAPS and would be jointly liable
with the members of SAPS. The
latter were in charge of the situation at the scene and had a duty to
monitor the conduct of any
person at the scene including members of
the neighbourhood watch.
[18]
In the circumstances I make
a finding that one or more of the members of SAPS involved in the
struggle with the deceased did in
fact throttle the deceased.
Accordingly, their conduct was the cause of the neck injuries
sustained by the deceased.
Wrongfulness / Unlawfulness
[19]
Wrongfulness is also an
essential and discrete element which has to be established for
delictual liability to ensue. The objects
of the police service are
stated in section 205(3) of the Constitution as: "To prevent,
combat and investigate crime, to protect
and secure the inhabitants
of the Republic and their property, and to uphold and enforce the
law".
Accordingly, in the
present case the members of SAPS and the Defendants owed a legal duty
of care to the deceased and the Plaintiffs.
Breach of such legal duty
gives rise to delictual liability.
[20]
The
Plaintiffs contended, correctly so in my view, that the Defendants
owed a legal duty to the deceased and the Plaintiffs to ensure
their
safety and security and had a legal duty to uphold and safeguard the
fundamental rights in terms of the Constitution which
include the
right to life, the right to respect for and protection of dignity and
the right to freedom and security.
In
the circumstances, the Defendants ought reasonably and practically to
have prevented harm to the deceased and the Plaintiffs.
In other
words, it is reasonable to expect of the Defendants to have taken
positive measures to prevent harm from ensuing. In the
present case
evidence presented by the medical experts on behalf of the Plaintiffs
shows clearly that the unfortunate death of
the deceased could have
been avoided or prevented had members of SAPS not used or allowed to
be used excessive and deadly force.
There is no justification found
from the evidence led that the members of SAPS took steps to prevent
the fatal accident or at all,
or that their lives were at the time
endangered.
[21] The element of
wrongfulness or unlawfulness addresses the reasonable objective test
of whether the wrongdoer
acted in accordance with what is expected by
the
boni mores
and
the reality of what actually occurred. The evidence for the
Defendants in the present case basically amounted to bare denials.
The members of SAPS denied that they had touched the neck area of the
deceased. Consequently they do not raise any ground of justification
in the death of the deceased nor do they give any explanation of a
minimum force they could have used to subdue the deceased.
[22] In constantly denying
that they have touched the deceased's neck area (which is obviously
false in view of
the experts' evidence including that of the
Defendants' own expert) they failed to put any evidence before this
Court to consider
in making a finding as to the reasonableness of
their actions. I accordingly make a finding that the conduct of the
members of
SAPS and their manner of restraining or subduing the
deceased was wrongful. The members of SAPS used excessive force in
the circumstances
to restrain and subdue the deceased and therefor
their conduct is unlawful.
See
Govender
v Minister of Safety and Security
[3]
.
[23]
There
was no reason to deliberately render the deceased unconscious solely
to apply restraining measures if there were enough persons
(in this
case 8 policemen plus 2 neighbourhood watch members) available to
hold his arms and legs. In addition, once the restraints
are in
place, there is no further reason to apply force to the neck which,
in this case, led to death through Asphyxia. Excessive
force was
applied to that part of the body (neck) without justification and
this resulted in the death of the deceased.
Negligence
[24]
The
question is whether the actions of the relevant members of SAPS
during the restraint of the deceased fell below the standard
reasonably expected of them. Put differently, the legal issue to be
adjudicated upon is whether the restraint was conducted negligently.
[25]
The
test for negligence was set out by Holmes JA in
Kruger
v Coetzee
[4]
as
follows:
"For
the purposes of liability
culpa
arises if-
(a)
a
diligens
paterfamilias
in the
position of the defendant-
(i)
would foresee the
reasonable possibility of his conduct injuring another in his person
or property and causing him patrimonial loss;
and
(ii)
would take reasonable steps
to guard against such occurrence; and
(b)
the
defendant failed to take such steps."
See also
Sea
Harvest Corporation (Pty) Ltd v Duncan Dock Cold Storage (Pty) Ltd
[5]
and
Minister of Safety and Security v
Van Duivenbonden
[6]
.
The onus is thus on the Plaintiffs to establish
that the death of the deceased on the 27 April 2015 was as a result
of the negligent
conduct of the members of South African Police
Service.
[26]
In
Mashongwa v
Passenger Rail Agency of South Africa
[7]
the Constitutional Court
pointed out that "the standard of a reasonable person was
developed in the context of private persons"
and, given the
fundamental difference between the State and individuals, "it
does not follow that what is seen to be reasonable
from an
individual's point of view must also be reasonable in the context of
Organs of State". The standard to be applied
is not that of a
reasonable person, but that of a reasonable Organ of State, that is
members of SAPS in the present case.
[27]
A
reasonable Organ of State is expected to "take reasonable
measures to advance the realisation of the rights in the Bill of
Rights" and the availability of
resources
is an important factor in determining what steps were available to
the Organ of State and whether reasonable steps
were in fact taken.
It is therefore necessary for the Organ of Sate "to present
information to the Court to enable it to assess
the reasonableness of
the steps taken"
[8]
[28]
In
the present case there is no explanation or information proffered by
the members of SAPS responsible for the restraining of the
deceased
as to how it came about that the deceased was throttled to a point of
death as shown by the medical evidence. Their evidence
basically
amounted to bare denials that they touched the neck area of the
deceased. On the other hand, it is clear from the evidence
that none
of the neighbourhood watch members were actively involved in the
actions of restraining the deceased. There is sufficient
evidence
that after the daughter had been taken away from the deceased, the
police officers kept on struggling to subdue the deceased
for a
considerable period of time.
[29]
It
was testified that in the first bedroom where the police officers
encountered the deceased and his daughter, only two police
officers
successfully managed to retrain the deceased by using a blanket to
cover the deceased whilst taking the child away from
him. They could
not explain to this Court as to why the same method could not have
been used successfully for the second time
when
the deceased went into the second bedroom. In the second bedroom
there were even more police officers (not less than four)
present
which number should have made the restraining process of the deceased
much more easier.
[30]
Prof
/ Dr Lippi testified about the way a violent person should be
restrained.
He was adamant that
the neck area of any person who is to be restrained is a "no go"
area as with proper planning, which
should only take few seconds, it
should not have been necessary to target the neck area of the
deceased at all. This evidence is
not gainsaid by the Defendants.
Should the Defendants' witnesses have testified that a neck hold or
strangulation was indeed necessary
as the only option to subdue or
restrain the deceased, this Court could have considered the
reasonableness of them using such deadly
force. Instead, the police
officers persisted with their false bare denial that any of them had
touched the neck area of the deceased.
In my view, and based on the
evidence presented by the medical experts of the Plaintiff (even the
Defendants' expert to a certain
extent) the unfortunate death could
have been prevented had the Defendants' officers not used excessive
force.
[31]
I
make a finding that the members of SAPS at the scene on the day in
question were negligent in handling the situation. They had
a clear
duty to
take control of the scene
to ensure that reasonable action was taken and not deadly force. At
all material times they were aware
or should have been aware of the
fact that excessive force may fatally harm the deceased. On their own
version they had at least
six trained officers at the scene. They
could have restrained the deceased sufficiently to wait for the
effect of drugs to normalise
or to call for assistance from a medical
practitioner.
Causation
[32]
The
element of causation consists of factual causation and legal
causation.
The former is based on
the relevant facts whether there is a break in the chain of events
that caused the harm. Legal causation
on the other hand determines
whether damage that occurred is too remote to reasonably be imputed
to the defendant.
[33]
What
remains to be considered in this matter is whether the wrongful and
negligent conduct of the members of SAPS was the legal
cause of the
death of the deceased. It was held in
Minister
of Safety and Security v Van Duivenboden
2002 (6) SA 431
(SCA)
that
a plaintiff is not required to establish the causal link with
certainty but only to establish that the wrongful conduct was
probably a cause of the loss, which calls for a sensible
retrospective analysis of what would probably have occurred, based
upon
the
evidence and what can be
expected to occur in the ordinary course of human affairs rather than
an exercise in metaphysics.
[34]
In
the present case a test is required to determine whether the police
conduct was the legal cause of the Plaintiffs' harm arising
from the
death of the deceased. It entails an enquiry into whether the
wrongful act is sufficiently closely linked to the harm
for legal
liability to ensue.
[35]
It
is common cause that the cause of death in the present case is
"Asphyxia due to Neck Compression consistent with Manual
Strangulation". A renowned writer in the medical field,
Professor Antomos G. Angoules
[9]
opines that: "Hyoid
bone fracture following strangulation or hanging is well documented
and that in a suspected case of murder,
a fractured hyoid bone is
indicative of strangulation. Non - strangulation related fractures
are rare. Traumatic hyoid bone fractures
are potentially life
threatening injuries".
[36]
In
the light of the factual and medical evidence before me, I am of the
view that the element of causation is established. The lack
of
mechanism of control, lack of pro-active systems and inadequate
management of the officials (personnel) under the Defendants'
supervision, caused the members of SAPS to use excessive force that
resulted in the death of the deceased.
PLAINTIFFS' CLAIMS FOR GENERAL DAMAGES
[37]
The
First and Second Plaintiffs claims in terms of the Particulars of
Claim is for general damages for emotional shock, emotional
suffering
and sentimental damages. They allege that they have suffered
emotional trauma and shock as a result of the death of their
son,
(the deceased) in the hands of members of SAPS and in their presence.
[38]
In
Barnard v
Santam
[10]
,
the Supreme Court of
Appeal confirmed the existence of a remedy where a plaintiff
sustained nervous shock as a result of the death
of a relative. The
test for liability is far more dependent upon the relationship
between the claimant and the victim.
The
same approach was followed by the same Court in
Road
Accident Fund v Sauls
[11]
.ln
that matter a plaintiff witnessed her fiance being struck by a motor
vehicle in her near vicinity. She thought he had been killed
or
seriously injured (fortunately neither was the case) and was left in
a condition of shock and confusion. She was subsequently
diagnosed
with post traumatic stress disorder which became chronic and
unlikely to improve. As was summed up in Court, "her
case is
that as a consequence of her witnessing the injury to her fiance she
suffered severe emotional shock and trauma which gave
rise to a
recognised and detectable psychiatric injury…..".
In
holding the defendant liable, Olivier JA explained
[12]
"It must be accepted that in order to
be successful
a
plaintiff in the respondent’s
position must prove, not mere nervous shock or trauma, but that she
or he had sustained
a
detectable psychiatric injury.
That this must be so is, in my view,
a
necessary and reasonable
limitation to
a
plaintiff's claim can find no
general, "public policy" limitation to the claim of
a
plaintiff, other than
a
correct and careful
application of the well-known requirements of delictual liability and
of the onus of proof "
[39]
Another judgment of the SCA
in
Mbhele v MEC
for Health for the Gauteng Province
1
[13]
went further to recognise
the claim for emotional shock. In that matter, due to negligence on
the part of certain hospital authorities,
the appellant's child was
stillborn. She instituted action for damages in the High Court. The
SCA found, on appeal, that the High
Court had erred in finding that
the appellant's claim for emotional shock had been abandoned and
proceeded to consider whether
it had been proved. It was held that it
had, and awarded the appellant R 100 000 as damages, saying that
there could be no doubt
"that the appellant experienced shock,
grief and depression".
[40]
The
existence of a remedy where a plaintiff has suffered emotional shock
or trauma has now been confirmed and settled in the more
recent
Supreme Court of Appeal judgment in the case,
R
Kand Others v Minister of Basic Education and Others
[14]
.
This is the infamous
case relating to the Komape child who fell into a pit toilet at his
school in Limpopo and died. His parents
and siblings were all awarded
damages for emotional shock, trauma and grief that had been suffered.
[41]
Based
on the authorities referred to and discussed above, I accordingly
find that the parents of the deceased
(J
J
Theron) and the
deceased's two minor children have suffered damages for emotional
shock, trauma and grief as a result of the death
of the deceased,
J
J
Theron.
CLAIM FOR LOSS OF SUPPORT
[42]
The
Third and Fourth Plaintiffs, as mother and natural guardian of the
two minor children of the deceased claim damages for loss
of support
on behalf of the two children.
Counsel
for the Defendants, Mr Mphahlele SC argued that the Third and Fourth
Plaintiffs have no
locus standi
to
institute action on behalf of the two minor children. He contended
that a marriage relationship with the deceased has not been
proved
and consequently a duty of support in relation to the two minor
children has not been established. For reasons that follow
hereunder,
there is no merit in the argument raised by Counsel. The points
raised by Counsel are overly technical in nature.
[43]
In
paragraph 3 of the Particulars of Claim it is alleged that the Third
Plaintiff is acting in her capacity as mother and natural
guardian of
the child, Migael Theron. Furthermore in paragraph 4 of the
Particulars of Claim it is alleged that the Fourth Plaintiff
is
acting in her capacity as mother and natural guardian of the child,
Carissa Theron.
The Defendants
admitted these allegations in paragraph 1 of their Plea.
[44]
The
Second Plaintiff (Anna Maria Theron) in her evidence-in-chief at the
trial testified that the deceased was the father of the
two minor
children in question and that there was an existing maintenance Court
order in favour of the mother of the children,
being the Third and
Fourth Plaintiffs, for the maintenance of the children. That the
mother of the children and the deceased divorced
in August 2012.
This
evidence was not disputed in cross-examination by the Defendants'
Counsel. The Defendants also did not object to the evidence
of Mrs
Theron (mother of the deceased) as not being best evidence on the
averments by Mrs Theron. In my view, the averments by
Mrs Theron were
therefore placed out of dispute by the Defendants.
[45]
It
is unfair and opportunistic for Counsel to raise the point of
locus
standi
only during the
closing argument when he did not challenge the Plaintiffs' evidence
during trial, in particular in cross-examination.
In
President
of the Republic of South Africa v South African Rugby Football Union
2000 (1) SA 1
(CC) para 61
it
was stated:
"The institution of
cross-examination not only constitutes
a
right, it also
imposes certain obligations. As
a
general rule it
is essential, when it is intended to suggest that
a
witness is not
speaking the truth on
a
particular point,
to direct the witness's attention to the fact by questions put in
cross examination showing that the imputation
is intended to be
made and to afford the witness an opportunity, while still in the
witness box, of giving any explanation open
to the witness and of
defending his or her character. If
a
point in dispute
is left unchallenged in cross-examination, the party calling the
witness is entitled to assume that the unchallenged
witness's
testimony is accepted as correct. This rule was enunciated by the
House of Lords in Browne v Dunn and has been adopted
and consistently
followed by our courts."
It was further held para 63:
"The
precise nature of the imputation should be made clear to the witness
so that it can be met and destroyed, particularly
where the
imputation relies upon inferences to be drawn from other evidence in
the proceedings. It should be made clear not only
that the evidence
is to be challenged but also how it is to
be
challenged.
This is so because
the witness must be given an opportunity to deny the challenge. to
call corroborative evidence. to qualify the
evidence given by the
witness or others and to explain contradictions on which reliance is
to be placed."
(My
underlining).
CONCLUSION
[46] In
consideration of all the evidence on record, it is my considered view
that the Plaintiffs have proved
their case on a balance of
probabilities that members of SAPS, and consequently the Defendants
are delictually liable for the death
of the deceased, J J Theron.
[47]
In the result I grant the following
order:
(a) It is
declared that the Defendants are liable, jointly and severally, to
compensate the First
and Second Plaintiffs in such sum as may be
agreed or determined in due course.
(b) It is
declared that the Defendants are liable jointly and severally, to
compensate the Third and
Fourth Plaintiffs in their capacity as
mother and natural guardian of the two minor children in such sum as
may be agreed or determined
in due course.
(c)
The
Defendants
are liable, jointly and severally, for payment of the Plaintiffs'
costs including the qualifying expenses and attendances
of the three
expert witnesses, Dr Matlala, Dr Mamashela and Prof / Dr Lippi.
EM
MAKGOBA
JUDGE PRESIDENT OF THE
HIGH COURT, LIMPOPO
DIVISION, POLOKWANE
APPEARANCES
Heard
on
:
6 May 2019, 1-2
July 2019, 24 July 2019,
3 October 2019, 5 December
2019,
20 March 2020, 8 May 2020.
Judgment
delivered on
: 21 May 2020
For
the Plaintiffs
: Adv.
I
A Van den Ende
Instructed
by
: Nelis Britz Attorneys
For
the Defendants
: Adv.MS Mphahlele SC
Instructed
: State Attorney
Polokwane
[1]
Neethling JP, Potgieter JM and Visser PJ: The Law of Delict (2010)
p34ff .
[2]
R v Blom
1939 AD 188
at 2020 - 203; Zeffert et al: The South African
Law of Evidence (Lexis Nexis) pages 95 - 96
[3]
2001 (4) SA 273 (SCA)
[4]
1966 (2) SA 428
(A) at 430
[5]
2000 (1) SA 827 (SCA)
[6]
2002 (6) SA 431 (SCA)
[7]
[2015] ZACC 36
,
2016 (3) SA 528
(CC) at para 40
[8]
Mashongwa at para 41
[9]
Faculty of Healthcare Professions at the Technological Educational
Institute of Athens, Greece.
[10]
Barnard v Sant am
[1998] ZASCA 84
;
1999 (1) SA 202
(SCA)
[11]
Road Accident Fund v Saul s 2002 (2) SA 55 (SCA)
[12]
Road Accident Fund v Sauls paras 13 and 17
[13]
Mbhele v MEC for Health for the Gauteng Province (355 /15) [2016]
ZASCA 166
[14]
R K and Others v Minister of Basic Education and Others (754/ 2018
and 1051/2018
[2019] ZASCA 192
(18 December 2019) at paras [32],
[48] and [56].